The rape of a minor of 12 years old from the Embera community, by seven Army men, which occurred in the municipality of Santa Cecilia, of the municipality of Puerto Rico, Risaralda, on June 22, caused the unanimous rejection of the country.
With great indignation, the attorney general, Francisco Barbosa, accused the soldiers, who were serving in the San Mateo Battalion, of “staining the honor” of the minor. And the President of Colombia, Iván Duque, even spoke of “opening” the life sentence with them, although it was soon clarified that this sanction, approved a few days ago by Congress, did not cover the soldiers, by the date what happened.
In a few hours, the Office of the Attorney General of the Nation captured the men, charged them before a judge and announced that they had accepted their responsibility, which was very well received as an effective response from the entity.
But when going into details of the imputation, a controversy arose that may have serious implications within the process: the Prosecutor’s Office charged the soldiers with the crime of abusive carnal access and not that of violent carnal access, which would be the one that would correspond for having been treated of a violation.
Recognized criminals reproached the prosecutor for the case. For the lawyer Francisco Bernate, the action has been a “true nonsense” of the accusing entity.
“The same accusation is quite curious insofar as what is being pointed out is that the woman agreed to have the sexual encounter with these people,” said the criminal, while explaining that the crime of abusive carnal access corresponds to an act Sexually consented, but with a child under 14 years of age. In other words, while rape involves the use of force, this crime is committed only because of the victim’s age, even if it was a consensual sexual act.
Also read: Indigenous justice does not rule out trying the soldiers who raped the Embera girl in Risaralda
The criminal lawyer argued that by charging soldiers with this crime, the minor is being re-victimized. However, after said error, in the judgment of the criminal, the worst would be to come. “Worse than that, what came later, when pointing out that this is not a problem because the sanction is the same, which is true, but pointing out that the typology of rape was not used gives the appearance that she did not resist, but that on the contrary wanted. That opens a career to a very complicated situation in Colombia. “
For the lawyer, this fact consists in that it is going to demand that a “heroic resistance” be established by the victim. “That cannot be so, there can be a violation without such resistance. But what is also said is that we have to be sure that there are judicialized at the end of the day. “
According to Bernate, that “tranquility” that they mention from the bunker is a wrong message, because in order to act quickly, the justice system cannot modify “what was clearly a violation and call it a consensual act.”
Bernate noted that the two messages from the Prosecutor’s Office are very serious, because “if you do not resist it is because you want to, and that a girl can consent to a sexual relationship with seven men, they are extremely delicate messages.”
For his part, the also criminal and former prosecutor Camilo Burbano reproached the action of the Prosecutor’s Office, however, made it clear that said action could only be opposed by the lawyer of the victims, or failing that, the Office of the Attorney who attended the proceedings, this Because the accusing body was the one that considered that this was the crime, and the accused party accepted it.
According to the criminal lawyer, despite the fact that there is an error in the imputation, due to a sentence of the Supreme Court of Justice, this punitive classification cannot be varied.
Under this understanding, for Burbano the seven soldiers within a few months will be sentenced for the crime they accepted. However, he agreed with Bernate that although the crime of abusive carnal access and violent carnal access have the same number of years in prison, there is an important connotation in the crime that is imputed.
“Having removed the component of violence makes the victim’s situation invisible and does not respond to the truth of what happened,” Burbano argued, adding that in this case they would face a sentence between the ages of 15 and 30.
Regarding the reduction regarding the acceptance of charges, the criminal lawyer made it clear that there is no such benefit in this case, because in the Code of Criminal Procedure there is a prohibition when accepting responsibility, but here the events occurred with a minor, there is no advantage.
As for the discounts for study and work, as has happened with Rafael Uribe Noguera, the confessed murderer and abuser of the little Yuliana Samboní, which occurred in December 2016, the criminal lawyer stated that the soldiers have the right to such benefit because this it cannot be removed from the legal system because it is part of the policy of resocialization of people deprived of liberty.
The prosecution’s decision was even criticized by the country’s vice president, Marta Lucía Ramírez.
“I am respectful of the autonomy of all entities, but I have to say in this case that I totally disagree. Here is a violation, here it is not an abuse or (abusive) access, but violent. This is a violation and if we do not call things by their name, then later we will see the judge of guarantees having a benign treatment that there cannot be in this case, ”said the Vice President.
According to the President, any sexual act with a minor is understood as rape and not as abuse. Despite the indications, the Attorney General himself has defended the entity’s actions, highlighting the speed with which the charges were made.
Why girl, why indigenous?
The rape of the girl Embera by the seven soldiers brought to mind another crime that shocked the country, and in which the victim was also an indigenous girl, but of the Yanacona ethnic group, Yuliana Samboní, murdered in 2016 by Rafael Uribe. Noguera.
Why were two indigenous girls the victims of such repugnant crimes? Are they more vulnerable to this type of crime?
Although they are very different cases, there is one element in common, according to what Nelson Rivera, deputy director of the care programs of the Renacer Foundation explained.
According to Rivera, these crimes involve an abuse of power. There is a desire on the part of the victimizer or the victimizers to intentionally harm the minor because they consider them to be inferior in strength and ability to react to an attack of this nature.
The very vulnerability of the two girls is what puts them most at risk.
“If we add to this the language limitations, since the minor does not speak Spanish, but the language of her community and it will be much more difficult for her to clearly explain what happened, that could give the aggressor the opportunity to prevent she will denounce the facts, ”said Rivera.
But the victim’s vulnerability does not end with crime. Lack of resources to deal with an overwhelming situation can worsen your condition. Therefore, the support of the family and specialists is essential, said Jorge Caucalí, psychologist and Master in Emotional Management.
“Whoever suffers a rape suffers shame towards his family for the fact. Due to the protection he requires, he begins to feel fragile in front of the other people around him, ”he said.
“Without proper treatment, frequent recall of events can trigger permanent physical and psychological problems. The lack of an adequate legal accompaniment can prevent a comprehensive reparation of the fact from being obtained, ”he concluded.
Separate processes
The special official who takes the process by direct delegation of the Attorney, Fernando Carrillo Flórez, determined that according to the existing evidence, two lines will be advanced. The first, to continue with the file against the soldiers.
The second, due to the lack of reasons that explain the connection to the process of Sergeant Deputy First Juan Carlos Díaz Díaz, Corporal Camilo Hernández Martínez and Corporal Jaider Muñoz García, it was determined that a new filing be assigned separately and a inquiry to establish the alleged disciplinary offense.
Indigenous justice
Although at this moment the priority is to monitor and verify the restoration of the rights of the raped Embera girl, the indigenous jurisdiction is studying the process to proceed if they consider it necessary.
The National Organization of Indigenous Peoples of Colombia indicated their intention that the soldiers be tried in both jurisdictions. “The traditional authorities demand that the aggressors be handed over to the indigenous justice to be tried and that after serving their sentence they also be tried by the ordinary criminal justice,” said Onic.
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